) Uday Shankar Singh @ Udai Shankar Singh, s/o Banke Bihari Singh, R/o Gandhinagar v. 1. Md.Parwez Alam 2. Md. Jawed Alam 3. Md.Jamshed Alam 4. Husna Ara 5
Case Details
1 S.A. 09 of 2016 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 09 of 2016 (Against the judgment and decree dated 30.11.2015 passed by the learned District Judge XI, Dhanbad in Civil Appeal no. 97 of 2004) Uday Shankar Singh @ Udai Shankar Singh, s/o Banke Bihari Singh, R/o Gandhinagar, P.O. & P.S. Dhansar, District- Dhanbad …... Defendant/ Appellant/ Appellant Versus 1. Md.Parwez Alam 2. Md. Jawed Alam 3. Md.Jamshed Alam 4. Husna Ara 5. Anjum Ara 6. Khursheda Bano 7. Yashmin Parween @ Jugnoo All sons and daughters of Late Abdul Kasim @ Abdul Qusim @ Abdul Qasim 8. Saiyad Sarfaraj Ahmad, S/o Md. Siraj All residents of Gaddi Mohalla, Naya Bazar, P.S.- Bankmore, P.O & District- Dhanbad ….. Plaintiffs/ Respondents/ Respondents For the Appellants : Mr. Yogesh Modi, Adv P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard learned counsel for the appellant. 2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment and decree dated 30.11.2015 passed by the learned District Judge XI, Dhanbad in Civil Appeal no. 97 of 2004 by which,
Legal Reasoning
learned First Appellate Court in a judgment of concurrence, has dismissed the appeal and affirmed the judgment and decree passed by learned Sub Judge V, Dhanbad dated 04.06.2004 in the Title Eviction Suit no. 50 of 1996. 2 S.A. 09 of 2016 3. The case of the plaintiffs in brief is that the plaintiffs are the owners of the suit premises, which was let out by them to the defendant on the monthly rent of Rs. 150/- payable, according to English Calendar by first week of every succeeding month. The defendant paid the rent up to the month of July 1994 but thereafter deliberately neglected the payment of rent to the plaintiffs and from August 1994, the defendant did not pay any rent, in spite of repeated requests and demand by the plaintiff, hence the plaintiffs filed the suit for eviction of the defendant from the suit premises. It is the further case of the plaintiffs that upon the defendants stopping the payment of rent since August 1994, the rent collector of the plaintiffs sent a notice to the defendant through the advocate on 02.03.1996 requesting the defendant to deliver the vacant possession of the suit premises to the plaintiffs and to vacate the tenanted shop and pay the arrears of rent by 31.03.1996 but the defendant did not take care to pay the rent due nor vacated the tenanted shop. The defendant in his written statement, challenged the maintainability of the suit on various technical grounds. The defendant admitted the relationship of the landlord and tenant, between the plaintiff and himself, in his written statement and the defendant pleaded that he never defaulted in payment of rent and up to the month of July 1994, he paid rent to the plaintiffs but from August 1994, the plaintiffs refused to receive the rent and the defendant sent the rent to the plaintiffs through money order continuously. The defendant next pleaded that the defendant cannot be treated as a defaulter. The tenanted shop was in a dilapidated condition, hence, the defendant requested the plaintiffs for its repair but the plaintiffs on one pretext or the other, avoided the request of the defendant but lastly, the plaintiffs asked the defendant to get the shop repaired at his own cost and the cost involved in repair of the shop was promised to be adjusted against the rent. On assurance of the plaintiffs, the defendant got the shop repaired involving 3 S.A. 09 of 2016 cost of Rs. 2000/- and requested the plaintiffs to adjust the same against the rent but the plaintiffs did not do so. After repair of the shop, the plaintiffs demanded enhanced rent which, the defendant refused to pay and hence, the plaintiffs refused to receive the rent from the defendant at the earlier agreed monthly rent between them of Rs. 150/-. It is further pleaded that the defendant went to the plaintiff no. 1, after receiving summons from the court and requested him to accept the amount sent by the postal money order towards rent whereupon the plaintiffs agreed to receive the rent and assured to withdraw the suit after having discussion with the plaintiff no. 2, but when again in the first week of June, 1996, the defendant met the plaintiff no. 1, he refused to accept the said rent sent by Money Order. 4. On the basis of the rival pleadings of the parties, learned trial court framed the following six issues :- (i) Is the suit as framed maintainable? (ii) Is the suit barred by the principles of waiver, estoppel and acquiescence? (iii) Have the plaintiffs got a valid cause of action for the suit? (iv) Has the defendant defaulted in payment of rent to the plaintiffs or their agent or rent collector? (v) Is the defendant liable to be evicted from the tenanted premises? (vi) To what other relief or reliefs are the plaintiffs entitled to? 5. Learned trial court considered the evidence in the record, both oral and documentary, i.e. the four witnesses examined by the plaintiffs and the documents which have been marked Exhibit. Exhibit 1 to 4/b and 10 witnesses examined by the defendants, and the documents which have been marked Exhibit A series and B series. 6. Learned trial court first took up issue nos. (iv) and (v) together and after considering the fact that since in the receipt of the collection of rent for the month of July, 1994, the address of the plaintiffs has been mentioned as Janata 4 S.A. 09 of 2016 Bazar, Purana Bazar, Dhanbad and thus, the defendant was expected to be aware about the said address of the plaintiffs. The defendant did not send money towards rent in the address of the plaintiffs at Janata Bazar, Purana Bazar, Dhanbad but instead sent it to Hind Button Stores, Ganja Gali, Dhanbad and the plaintiffs refused that Hind Button Stores, Ganja Gali, Dhanbad is their address. The trial court considered that thus, the onus is on the defendant to prove that the plaintiffs resided at Hind Button Stores, Ganja Gali, Dhanbad, and not at Janata Bazar, Purana Bazar, Dhanbad but the DW 1 failed to discharge that burden by deposing in court in para 4 that the defendant does not know the residence of plaintiff no. 2. The DW 1, who is the father of the defendant, deposed that he permitted the money order to be sent to Hind Button Stores, Ganja Gali, Dhanbad without being confirmed that actually it was being used by the plaintiffs for residential purpose. The trial court considered that on the other hand the PW1, Saiyad Sarfaraz Ahmad, stated in para 10 of his cross-examination that he does not reside at Hind Button Stores and he has left that place from six years back. The trial court also considered that testimony of PW4 to the effect that Hind Button Stores does not relate to the plaintiff no. 2 and held that the defendant has failed to establish that Hind Button Stores, Ganja Gali, Dhanbad was used by the plaintiffs either as residential house or business place and thus non remittance of rent at the address enumerated in the rent receipt which was marked Exhibit 4 does not amount to payment of rent. The trial court also considered that though the defendant appeared in the suit on 20.06.1996 after receiving the summons, accompanied by the copy of the plaint and the address of the plaintiffs was categorically mentioned in the plaint still Ext. A being the coupon of money order goes to show that the defendant remitted the rent for the month of July, 1996 also in favour of the plaintiffs on 20.8.1996 at the address of Hind Button Stores, Ganja Gali, Dhanbad. The 5 S.A. 09 of 2016 trial court relied upon the judgment of the Hon’ble Supreme
Legal Reasoning
Court of India in the case of Smt. Jahejo Devi and Others vs. Moharam Ali reported (1988) 0 PLJR, (SC), 33 and (1988) 1 SCC 372 wherein it was held by the Hon’ble Supreme Court of India that a tenant remitting rent at wrong address after knowledge of proper address of the landlord cannot be said that he has validly remitted the rent and he will be treated as a defaulter and the trial court also went on to hold that the defendant has defaulted in payment of rent as contended by the plaintiffs from the month of August, 1994 in respect of the suit premises which is more than two consecutive months and thus the defendant is liable to be evicted from the suit premises. Thereafter, learned trial court took up issue no. (i), and (iii) together and observed that the said issues were not pressed at the time of hearing but after going through the materials in the record, the learned trial court came to the conclusions that the plaintiffs have got valid cause of action for the suit and the suit is maintainable. Learned trial court disposed of issue no. (ii) and (vi) as not pressed and on the basis of its finding on different issues, ordered that the suit is decreed on contest and ordered the defendant to vacate the suit premises and hand over the vacant possession of the suit premises to the plaintiffs within 60 days from the date of the judgment. 7. Being aggrieved by the judgment and decree passed by learned trial court, the defendants- appellants filed Civil Appeal No. 97 of 2004 in the court of learned Principal District Judge, Dhanbad which was ultimately heard and disposed of by the learned First Appellate Court by the impugned judgment and decree. 8. Learned First Appellate Court made independent appreciation of the evidence in the record and after reconsidering the facts and law and also taking into consideration the admission of the DW8- the defendant himself that even after receiving the notice from the court, he kept on remitting the rent at the address of Hind Button 6 S.A. 09 of 2016 Stores, Ganja Gali, Dhanbad and also the admission of DW10 that Hind Button Stores, Ganja Gali, Dhanbad belongs to one Zafar and he is at Patna, came to the conclusion that the defendant –appellant has defaulted in payment of rent and he is liable to be evicted from the tenanted shop as per Section 11 (1) (d) of the Jharkhand Building (Lease, Rent and Eviction) Control Act, 2000 and dismissed the appeal affirming the judgment of the trial court. 9. Mr. Yogesh Modi, learned counsel for the appellants by relying upon the judgment of the a co-ordinate Bench of this court in the case of Maya Rani Kundu and others vs. Purushottam Das Jhunjhunwala and Anr. reported in 2004 (4) JCR 144 (Jhr.), wherein in the facts of that case when the rent was sent by money order in due time by the tenant but the landlord refused to receive the same, the co-ordinate Bench held that the landlord cannot claim eviction under Section 11 (1) (d) of the Bihar Building (Lease, Rent and Eviction) Control Act, 2000, which is a pari materia Act of Jharkhand Building (Lease, Rent and Eviction) Control Act, 2000, and the trial court itself observed in the para 7 of its judgment at internal page 8 that from perusal of Exhibit A/20 and A/23, it is crystal clear that the defendant sent rent in favor of the plaintiffs- Saiyad Sarfaraj Ahmad regularly and those exhibits establishes that the defendant was regularly remitting the rent in favour of the plaintiffs, both the courts below committed grave error of law by still holding that the defendant has defaulted the payment in respect of the suit land, hence it is submitted by the learned counsel for the appellant that the impugned judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be dismissed after formulating the appropriate substantial question of law. 10. Having heard the submissions made at the Bar and after going through the materials available in the record, as has been held by the Hon’ble Supreme Court of India in the case of Smt. Jahejo Devi and Others vs. Moharam Ali (supra), it 7 S.A. 09 of 2016 is a settled principle of law that if the defendants deliberately sends the rent of the tenanted premises to an address different from the one at which, the landlord resides, the same will not save the defendant from being a defaulter in payment of rent in respect of the tenanted premises. 11. After carefully going through the materials available in the record, it is crystal clear that Exhibit 4 which is the rent receipt shows the address of the plaintiff different from the address to which, the money order claimed to have been sent by the defendant. The defendant failed to establish that the plaintiffs ever refused to accept the money orders which were sent at the wrong address, the defendant has not disclosed as to with what endorsement, the money orders were returned, as the defendant claimed to have been sent the same for over a period of 24 months , it means, at least about 24 money orders must have been sent by the defendant. The defendant failed to establish that the plaintiffs- the landlords ever resided at the address, in which, the money orders were allegedly sent. 12. Thus, this court is of the considered view that the findings of the fact arrived at by both the courts below, is not by ignoring or excluding relevant materials or taking into consideration the irrelevant materials nor such finding so outrageously defies logic, so as to suffer from the vice of irrationality incurring the blame of being perverse. 13. Under such circumstances, this court is of the considered view that there is no justifiable reason for this court, to interfere with the concurrent finding of facts arrived at by both the courts below. In exercise of its jurisdiction under section 100 of the Code of Civil Procedure, 1908 and there is absolutely no substantial question of law involved in this appeal, accordingly, this appeal being without any merit is dismissed but in the circumstances, without any cost. 8 S.A. 09 of 2016 14. Let a copy of this Judgment be sent back to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 7th February, 2023. Smita /AFR